FAMILY COURT OF AUSTRALIA
| SADLIER & SADLIER | [2015] FamCAFC 130 |
| FAMILY LAW – APPEAL – Leave to appeal – Interim Spousal Maintenance – where there is an error of principle – where the husband has suffered a substantial injustice – where appeal is not from a decision categorised as orders in the nature of practice or procedure – leave granted. FAMILY LAW – APPEAL – whether the application was urgent or interim – whether s 77 of the Family Law Act 1975 (Cth) applied – whether the wife had an immediate need – whether this need was quantified – where there were errors in the wife’s Financial Statement – where the maintenance was determined according to the husband’s capacity to pay rather than the wife’s need – where the husband had ongoing legal obligation to service debt – where the order was not expressed for a limited time until further hearing – appeal allowed. |
Family Law Act 1975 (Cth) ss 72, 74, 75(2), 77, 94AA(1) , 94AAA(3)
Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 9
Family Law Regulations 1985 (Cth) reg 15A
Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170
Ashton & Ashton (1982) FLC 91-285
Bevan & Bevan (1995) FLC 92-600
Branchflower & Branchflower (1980) FLC 90-857
Chapman & Chapman (1979) FLC 90-671
Commonwealth v Verwayen (1991) 170 CLR 394
Jess and Ors & Jess and Ors (2014) FLC 93-620
Kajewski & Kajewski (1978) FLC 90-471
Malcolm & Malcolm (1977) FLC 90-220
Page & Page (1987) FLC 91-806
Rutherford & Rutherford (1991) FLC 92-255
Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238
Samsung Electronics Co Limited v Apple Inc [2013] FCAFC 138
Stein & Stein (2000) FLC 93-004
| APPELLANT: | Mr Sadlier |
| RESPONDENT: | Ms Sadlier |
| FILE NUMBER: | NA | 75 | of | 2014 |
| APPEAL NUMBER: | BRC | 8988 | of | 2014 |
| DATE DELIVERED: | 1 July 2015 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 30 June 2015 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 2 December 2014 |
| LOWER COURT MNC: | [2014] FCCA 3064 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | In person |
| SOLICITOR FOR THE RESPONDENT: | In person |
Orders
Leave to appeal is granted.
The appeal from Order 1 of the orders made on 2 December 2014 be allowed and that order be discharged.
The application of the wife for spousal maintenance be remitted for rehearing in the Federal Circuit Court of Australia, before a judge other than Judge Demack.
There be no order as to costs of the appeal.
The Court grants to the husband a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payment under that Act to the husband in respect of the costs incurred by him in relation to the appeal.
The Court grants to the wife a costs certificate pursuant to the…
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- Sadlier & Sadlier [2015] FamCAFC 130
- Case
- [2015] FamCAFC 130
- Decision Date
CaseChat Overview and Summary
The court was required to decide whether the application for spousal maintenance was urgent or interim, and if section 77 of the Family Law Act 1975 (Cth) applied. It also needed to examine whether the wife had an immediate need and if that need was quantified, as well as whether the maintenance was determined according to the husband's capacity to pay rather than the wife's need. Furthermore, the court considered the husband's ongoing legal obligation to service debt and the fact that the order was not expressed for a limited time until further hearing.
The court found that there were errors in principle in the lower court's decision and that the husband had suffered a substantial injustice. The appeal was not from a decision categorised as orders in the nature of practice or procedure, and thus, leave to appeal was granted. The appeal from Order 1 of the orders made on 2 December 2014 was allowed and the order was discharged. The application for spousal maintenance was remitted for rehearing in the Federal Circuit Court of Australia before a judge other than Judge Demack. No order was made as to the costs of the appeal. However, the court granted a costs certificate to both parties pursuant to the Federal Proceedings (Costs) Act 1981 (Cth), allowing the Attorney-General to authorise payment of the costs incurred by the husband and wife in relation to the appeal.
Orders
Orders of the court
1.
Leave to appeal is granted.
2.
The appeal from Order 1 of the orders made on 2 December 2014 be allowed and that order be discharged.
3.
The application of the wife for spousal maintenance be remitted for rehearing in the Federal Circuit Court of Australia, before a judge other than Judge Demack.
4.
There be no order as to costs of the appeal.
5.
The Court grants to the husband a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payment under that Act to the husband in respect of the costs incurred by him in relation to the appeal.
6.
The Court grants to the wife a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the wife in respect of the costs incurred by her in relation to the appeal.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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